Case No. CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL. Plaintiffs Wesley Thornton and Antoinette Stansberry bring this Class Action Complaint

Transcription

1 CALENDAR: 10 PAGE 1 of 12 CIRCUIT COURT OF IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION CHANCERY DIVISION CLERK DOROTHY BROWN WESLEY THORNTON and ANTOINETTE STANSBERRY, individually and on behalf of all others similarly situated, v. Plaintiffs, NCO FINANCIAL SYSTEMS, INC., a Pennsylvania corporation, Defendant. Case No. CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiffs Wesley Thornton and Antoinette Stansberry bring this Class Action Complaint and Demand for Jury Trial against Defendant NCO Financial Systems, Inc. ( NCO ) to stop its practice of making unsolicited telephone calls to the cellular telephones of consumers nationwide, and to obtain redress for all persons injured by its conduct. Plaintiffs allege as follows upon personal knowledge as to themselves and their own acts and experiences, and, as to all other matters, upon information and belief, including investigation conducted by their attorneys. NATURE OF THE ACTION 1. Defendant NCO Financial Systems, Inc. is a debt collector. 2. Defendant repeatedly made unsolicited telephone calls to Plaintiffs and the other members of the Classes cellular telephones in violation of the Telephone Consumer Protection Act, 47 U.S.C. 227 ( TCPA ). 3. The TCPA was enacted to protect consumers from unauthorized and repeated calls, exactly like those alleged in this case. NCO made these telephone calls despite the fact that

2 neither Plaintiffs nor the other members of the putative Classes of consumers (defined below) provided NCO with their prior express consent to receive such telephone calls. 4. By making the telephone calls at issue in this Complaint, NCO caused Plaintiffs and the other members of the Classes actual harm, including the aggravation and nuisance that necessarily accompanies the receipt of unauthorized telephone calls. 5. In response to NCO s unlawful conduct, Plaintiffs filed the instant lawsuit, seeking an injunction requiring NCO to cease all unauthorized telephone calls, as well as an award of statutory damages to the members of the Damages Class as provided under the TCPA, together with costs and reasonable attorneys fees. PARTIES PAGE 2 of Plaintiff Wesley Thornton is a natural person and resident and citizen of the Commonwealth of Virginia. 7. Plaintiff Antoinette Stansberry is a natural person and citizen of the State of Illinois. 8. Defendant NCO Financial Systems, Inc., is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business located at 507 Prudential Road, Horsham, Pennsylvania NCO Financial Systems does business throughout the United States, the State of Illinois, and this County. JURISDICTION AND VENUE 9. This Court has personal jurisdiction over Defendant pursuant to 735 ILCS 5/2-209 because Defendant conducts business transactions in Illinois, and has directed its tortious acts toward Illinois residents. Additionally, this Court has jurisdiction over Plaintiff Stansberry because she is a resident of the State of Illinois, and Plaintiff Thornton because he has submitted 2

3 to this Court s jurisdiction. 10. Venue is proper in Cook County because Defendant conducts business transactions within Cook County, and because the wrongful conduct giving rise to this case occurred in and/or was directed to Cook County. Venue is additionally proper because Plaintiff Stansberry resides in Cook County. COMMON FACTUAL ALLEGATIONS 11. Defendant placed, and continues to place, repeated and harassing telephone calls to consumers who allegedly owe a debt held by Defendant or by a third party on whose behalf Defendant is acting. 12. Plaintiffs and the other members of the Classes never provided Defendant the PAGE 3 of 12 phone numbers called for any purpose related to an outstanding debt or to any transaction underlying a debt. 13. Instead, Defendant acquires phone numbers through various means such as skip tracing or number trapping. 14. As such, Defendant did not have prior express consent to place the telephone calls at issue to Plaintiffs and the members of the Classes. 15. NCO utilizes automatic telephone dialing systems to make prerecorded calls. For example, on its website, NCO asserted: NCO s Interactive Voice Messaging (IVM) solution uses advanced technology to deliver high quality automated messaging to our clients customers globally. Whether the goal is to reduce inbound call volume, increase customer self-service, or connect customers to a live agent, NCO s IVM solution enables our clients to deliver branded, repeatable, messaging to its customers while maximizing the customer experience and your revenue.. See NCO, Interactive Voice Messaging, available at: 3

4 ons/interactive_voice_messaging.html (providing a capture of NCO s website from Sept. 25, 2013). 16. Defendant has placed telephone calls for the purpose of alleged debt collection to millions of consumers in the past seven years. 17. Defendant is and was aware that these telephone calls were and are being placed to Plaintiffs and members of the Classes without their express consent to receive such calls. FACTS RELATING TO PLAINTIFF THORNTON 18. Beginning in or around January 1, 2009, and continuing through 2011, Plaintiff Wesley Thornton received numerous prerecorded and auto-dialed phone messages on his wireless phone from Defendant, for which Plaintiff provided no consent to call. PAGE 4 of Plaintiff Wesley Thornton has received numerous calls and voic s, sometimes up to seven times per day. 20. In making the calls to Plaintiff Thornton, Defendant utilized an automatic telephone dialing system. Specifically, the hardware and software used by Defendant had the capacity to generate and store random numbers, or receive and store lists of telephone numbers, and to dial those numbers, en masse, in an automated fashion without human intervention. Defendant s automated dialing equipment also was, or included, features substantially similar to, a predictive dialer, meaning that it was capable of making numerous phone calls simultaneously and automatically connecting answered calls to then available telemarketers and disconnecting the rest. 21. The unsolicited phone calls placed to Plaintiff Thornton s wireless telephone also included telephone calls featuring an artificial or pre-recorded voice system, rather than a live person. 4

5 22. On March 24, 2011, Plaintiff Thornton received a telephone call on his cell phone that resulted in the following female pre-recorded and/or artificial voic message: This is an important message N.C.O. Financial Systems, a debt collection company. This is an attempt to collect a debt and any information obtained will be used for that purpose. Please return the call to Annett Class at (800) Again, that s [Annett Class] at (800) Thank you. NCO Financial Systems is a debt collection company. This is an attempt to collect a debt and any information obtained will used for that purpose. When calling, please refer to your ID code, 2C7E4B. Again, your ID code is 2C7E4B. 23. Plaintiff Thornton did not provide Defendant or its agents prior express consent to receive unsolicited phone calls pursuant to 47 U.S.C. 227 (b)(1)(a). 24. None of the telephone calls Defendant placed to Plaintiff Thornton were for emergency purposes as defined by 47 U.S.C. 227 (b)(1)(a)(i). PAGE 5 of The phone calls made by Defendant or its agents to Plaintiff Thornton violated 47 U.S.C. 227 (b)(1). FACTS RELATING TO PLAINTIFF STANSBERRY 26. Beginning in or around January 1, 2013, and continuing through the present, Plaintiff Antoinette Stansberry received numerous prerecorded telephone calls on her wireless phone from Defendant, for which Plaintiff provided no consent to call. 27. At times when Plaintiff Stansberry waited for a live person to come to the line, Plaintiff told Defendant to stop contacting her on her wireless phone. 28. In making the telephone calls to Plaintiff Stansberry, Defendant utilized an automatic telephone dialing system. Specifically, the hardware and software used by Defendant had the capacity to generate and store random numbers, or receive and store lists of telephone numbers, and to dial those numbers en masse, in an automated fashion without human intervention. Defendant s automated dialing equipment also was, or included features substantially similar to, a predictive dialer, meaning that it was capable of making numerous 5

6 phone calls simultaneously and automatically connecting answered calls to then available telemarketers and disconnecting the rest. 29. Plaintiff Stansberry did not provide Defendant or its agents prior express consent to receive unsolicited telephone calls pursuant to 47 U.S.C. 227 (b)(1)(a). 30. None of the telephone calls placed Defendant to Plaintiff Stansberry were for emergency purposes as defined by 47 U.S.C. 227 (b)(1)(a)(i). 31. The telephone calls made by Defendant or its agents to Plaintiff Stansberry violated 47 U.S.C. 227 (b)(1). CLASS ALLEGATIONS 32. Damages Class Definition: Plaintiff Thornton brings this action pursuant to 735 PAGE 6 of 12 ILCS 5/2-801 on behalf of himself and a class of similarly situated individuals, defined as follows: Damages Class: all individuals in the United States (i) that received one or more telephone calls to a cellular telephone from NCO since January 16, 2009, and continuing through to the present; (ii) that related to an account that was worked by NCO from one of its offices, including, but not limited to, those offices located in (a) Virginia Beach, Virginia, (b) Horsham, Pennsylvania, (c) Getzville, New York, (d) Dublin, Ohio, (e) Montreal, Canada or (f) the Philippines; and (iii) that was made by one or more of the following telephone systems: (a) Guaranteed Contacts, (b) CRS Mercury, (c) Aspect, (d) LiveVox or (e) Soundbite (also known as Genysis). The following people are excluded from the Damages Class: (1) the Judge presiding over this action (or the Judge or Magistrate presiding over the action through which this matter is presented for settlement), and members of their families; (2) the defendant, defendant s subsidiaries, parent companies, successors, predecessors, and any entity in which the defendant or its parents have a controlling interest and its current or former officers, directors, and employees; (3) persons who properly execute and file a timely request for exclusion from the class; and (4) the legal representatives, successors or assigns of any such excluded persons. 6

7 33. Injunctive Relief Class Definition: Plaintiff Stansberry brings this action pursuant to 735 ILCS 5/2-801 on behalf of herself and a class of similarly situated individuals, defined as follows: Injunctive Relief Class: All individuals called by NCO on their cellular telephones during the Class Period (i.e., January 16, 2009 through and including the present). The following people are excluded from the Injunctive Settlement Class are (1) the Judge presiding over this action (or the Judge or Magistrate presiding over the action through which this matter is presented for settlement), and members of their families; (2) the defendant, defendant s subsidiaries, parent companies, successors, predecessors, and any entity in which the defendant or its parents have a controlling interest and its current or former officers, directors, PAGE 7 of 12 and employees; (3) any individual or entity whose claim(s) are based upon receipt of a call from NCO on a telephone number owned, controlled, operated, or otherwise utilized to intercept calls as a simultaneous ring number and linked to a database (or databases) to intercept and identify calls made using an artificial or pre-recorded voice, or otherwise maintains telephone numbers for a commercial purpose of attempting to identify telemarketing calls; (4) persons who properly execute and file a timely request for exclusion from the class; (5) all members of the Damages Class; and (6) the legal representatives, successors or assigns of any such excluded persons. 34. Numerosity: The exact number of the Classes members is unknown to Plaintiffs at this time, but it is clear that individual joinder is impracticable. On information and belief, the Damages Class consists of approximately 1.5 million individuals, and the Injunctive Relief Class consists of tens of millions of individuals. Members of the Classes can be identified through NCO s records. 35. Commonality and Predominance: There are many questions of law and fact common to the claims of Plaintiffs and the Classes, and those questions predominate over any 7

8 questions that may affect individual members of the Classes. Common questions for the Classes include, but are not necessarily limited to the following: (a) (b) (c) (d) whether NCO s conduct violated the TCPA; whether the equipment Defendant used to make the telephone calls in question was an automatic telephone dialing system as contemplated by the TCPA; whether NCO systematically made telephone calls to persons who did not previously provide Defendant with their prior express consent to receive such telephone calls; and whether Plaintiffs or members of the Damages Class are entitled to treble damages based on the willfulness of Defendant s conduct. 36. Adequate Representation: Plaintiffs will fairly and adequately represent and PAGE 8 of 12 protect the interests of the Classes and have retained counsel competent and experienced in complex litigation and class actions. Plaintiffs have no interests antagonistic to those of the Classes, and Defendant has no defenses unique to Plaintiffs. Plaintiffs and their counsel are committed to vigorously prosecuting this action on behalf of the members of the Classes and have the financial resources to do so. Neither Plaintiffs nor their counsel have any interest adverse to those of the other members of the Classes. 37. Appropriateness: This class action is appropriate for certification because class proceedings are superior to all other available methods for the fair and efficient adjudication of this controversy and joinder of all members of the Classes is impracticable. The damages suffered by the individual members of the Classes are likely to have been small relative to the burden and expense of individual prosecution of the complex litigation necessitated by Defendant s wrongful conduct. Thus, it would be virtually impossible for the individual members of the Classes to obtain effective relief from Defendant s misconduct. Even if members of the Classes could sustain such individual litigation, it would not be preferable to a class action 8

9 because individual litigation would increase the delay and expense to all parties due to the complex legal and factual controversies presented in this Complaint. By contrast, a class action presents far fewer management difficulties and provides the benefits of single adjudication, economies of scale, and comprehensive supervision by a single court. Economies of time, effort, and expense will be fostered and uniformity of decisions will be ensured. herein. FIRST CAUSE OF ACTION Violation of 47 U.S.C. 227 (On Behalf of Plaintiff Thornton and the Damages Class) 38. Plaintiff Thornton incorporates the foregoing allegations as if fully set forth 39. NCO made unsolicited telephone calls to the cellular telephone numbers PAGE 9 of 12 belonging to Plaintiff Thornton and the other members of the Damages Class without their prior express consent. 40. NCO made the telephone calls to Plaintiff Thornton and the Damages Class using equipment that had the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and/or receive and store lists of phone numbers, and to dial such numbers. 41. NCO utilized equipment that made the telephone calls to Plaintiff Thornton and other members of the Damages Class simultaneously and without human intervention. 42. NCO has, therefore, violated 47 U.S.C. 227(b)(1)(A)(iii). As a result of NCO s unlawful conduct, Plaintiff Thornton and the members of the Damages Class suffered actual damages and, under 47 U.S.C. 227(b)(3)(B), are each entitled to, among other things, a minimum of $500 in damages for each such violation. 9

10 43. Should the Court determine that NCO s conduct was willful and knowing, the Court should, pursuant to 47 U.S.C. 227(b)(3), treble the amount of statutory damages recoverable by Plaintiffs and the other members of the putative Class. SECOND CAUSE OF ACTION Violation of 47 U.S.C. 227 (On Behalf of Plaintiff Stansberry and the Injunctive Relief Class) 44. Plaintiff Stansberry incorporates the allegations contained in Paragraphs 1 through 37 as if fully set forth herein. 45. NCO made unsolicited telephone calls to the cellular telephone numbers belonging to Plaintiff Stansberry and the other members of the Injunctive Relief Class without their prior express consent. PAGE 10 of NCO made the telephone calls to Plaintiff Stansberry and the Injunctive Relief Class using equipment that had the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and/or receive and store lists of phone numbers, and to dial such numbers. 47. NCO has, therefore, violated 47 U.S.C. 227(b)(1)(A)(iii). As a result of NCO s unlawful conduct, Plaintiff Thornton and the members of the Damages Class suffered actual damages and, under 47 U.S.C. 227(b)(3)(B), are each entitled to, among other things, a minimum of $500 in damages for each such violation. 48. Should the Court determine that NCO s conduct was willful and knowing, the Court should, pursuant to 47 U.S.C. 227(b)(3), treble the amount of statutory damages recoverable by Plaintiffs and the other members of the putative Class. PRAYER FOR RELIEF WHEREFORE, Plaintiffs Wesley Thornton and Antoinette Stansberry, on behalf of themselves and the Classes, respectfully request that this Court enter an Order: 10

11 A. Certifying the Classes as defined above, appointing Plaintiff Wesley Thornton as representative of the Damages Class and Plaintiff Antoinette Stansberry as representative of the Injunctive Relief Class, and appointing their counsel as Class Counsel; B. Declaring that NCO s actions, as set out above, violate 47 U.S.C. 227; C. Awarding injunctive and other equitable relief as necessary to protect the interests of the Classes, including, among other things, an order prohibiting NCO from engaging in the wrongful and unlawful acts described herein; D. Awarding actual and statutory damages; E. Awarding reasonable attorneys fees and costs; and F. Awarding such other and further relief that the Court deems reasonable and just. PAGE 11 of 12 JURY TRIAL Plaintiffs demand a trial by jury for all issues so triable. Respectfully submitted, WESLEY THORNTON and ANTOINETTE STANSBERRY, individually and on behalf of all others similarly situated, Dated: April 25, 2016 By: s/ Benjamin H. Richman One of Plaintiffs Attorneys Jay Edelson jedelson@edelson.com Rafey S. Balabanian rbalabanian@edelson.com Benjamin H. Richman brichman@edelson.com EDELSON PC 350 North LaSalle Street, 13th Floor Chicago, Illinois Tel: Fax: Firm ID:

12 Keith J. Keogh KEOGH LAW, LTD 55 West Monroe Street, Suite 3390 Chicago, Illinois Tel: Fax: Firm ID: PAGE 12 of 12 Ronald A. Marron* Alexis M. Wood* Kas Gallucci* LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, California Tel: Fax: Douglas J. Campion* LAW OFFICES OF DOUGLAS J. CAMPION, APC Via Del Campo Ste. 100 San Diego, California Tel: Fax: *Pro hac vice admission to be sought 12